Disclaimer: The Voice Legal Literacy Project does not endorse either the Yes or the No Campaign. The purpose of these posts is to help the public accurately understand key arguments for both cases to allow informed decision-making. The posts adopt a good faith, evidence-based approach to understanding the arguments of both campaigns.
What is this AbouT?
There is no inherently ‘good’ or ‘bad’ option. Much of the campaigning for both YES and NO relies upon heavily emotive language (appeals to fairness or justice etc), which can make it difficult to understand the distinctive concerns of each side. The analysis of this pages is designed to help everyone – both those leaning YES or leaning NO – to understand the concerns and issues at play. A proposal to change the Constitution is an opportunity for us to reflect upon the type of nation we wish to be. In a democracy, that means valuing a wide range of different perspectives and opinions. But as citizens voting in a referendum, we each have an obligation to understand what is being proposed – and that means rising above appeals to emotion to understand the underlying policy positions and arguments. These pages are designed to assist in that task.
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UNDERSTANDING THE CASE FOR NO
People will support the ‘No’ case for a wide variety of reasons – some of those reasons will be convincing for others, some less so. For some opponents the proposed Voice is too radical, it would be too disruptive of our constitutional system. For other opponents, the proposed Voice is not sufficiently radical, a mere symbolic gesture when concrete change is needed. Opponents of the Voice come from both the conservative right and the progressive left.
The starting point for understanding the case for NO is to reflect on what it is the Voice is designed to do:
This core design helps highlight some of the essential concerns of the No case.
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Overview of the the Voice
WHAT: Provides a constitutionalised platform (the 'megaphone') TO WHOM: To a particular marginalised group (Aboriginal and Torres-Strait peoples) TO WHAT END: By doing so the Voice aims to:
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Concerns with the Mechanism (the 'What')
Firstly, there are concerns with the model of what is proposed. For some opponents of the Voice, their concern is with the particular mechanism that is being proposed, because:
- Too Little: The creation of a body that can only make representations does not allow sufficient recognition or empowerment of Aboriginal and Torres-Strait peoples
- Too Much: Giving a platform to allow one group to have their voice amplified disrupts the balance of our system of government;
- Too Uncertain: The incorporation of the Voice into the Constitution creates too much uncertainty, as we don’t know how it will develop or evolves, and it could not be abolished without another referendum.
- Too Bureaucratic: For some, the concern is that the Voice will become just another ‘Canberra bubble’ institution, limited by its own bureaucracy
Concerns with the Group (the 'Whom')
Secondly, there are concerns about the focus on this particular group - that the creation of a forum to amplify the voice of this group. For some opponents of the Voice, their concern is with the particular mechanism that is being proposed:
- Why this Group: One argument is that there are many marginalised and disadvantaged groups in Australian, and opponents of the Voice feel that it insufficiently explains why this group is being amplified;
- Why Any One Group: A second, similar concern is that the focus on empowering any one group is unduly decisive – that by introducing this forum for one group we introduce unnecessary division into Australia
- The ‘Racisim’ Concern: A third concern is that the Voice is improper because either (a) it is inherently racist; or (b) it risks introducing racist divisions into the Constitution.
Concerns with the Objectives
Thirdly, there are arguments about the objectives the Voice seeks to meet, and its capacity to meet those objectives. For some opponents of the Voice, their concern is with the particular objectives that is being pursued:
- Ineffective Impact on Decision-Making: One concern is that the Voice is unlikely to have a significant impact – that merely allowing representations (rather than consultation or veto) will mean it is pointless;
- Mere Symbolism: Similarly, there is concern that because of the design of the Voice, it is a mere symbolic gesture and not a meaningful act of recognition and reconciliation;
- Poor Symbolism: Moreover, there is concern that as far as symbolic recognition goes, this is not the best way of recognising Aboriginal and Torres-Strait peoples – that amendment to the preamble or other constitutional gesture would be better.
We can think of some of the key concerns of the No case in the following way:
Key Concerns of the No Case
1) It conflates the recognition of Aboriginal and Torres-Strait peoples with the formation of the Voice body. 2) The Voice will:
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As should be apparent from the above discussion, people will oppose the Voice for a very wide variety of reasons: some people will support No, on the basis of some of these concerns but be opposed to many of these arguments. As citizens our job is to try to understand as much about the issues as possible.
Key Arguments for the No Case
The follow sections seek to articulate five of the main arguments for the No case. These arguments are drawn from a variety of sources, and are presented in their best light to allow citizens to make their own decision.
The 'Legislative' Argument |
The Australian Parliament has the capacity to legislate to improve the lives of its citizens. Equality of citizenship for all peoples in Australia is a fundamental ideal at the core of Australian democracy. By enshrining the Voice in the Constitution with the power to make representations to Executive Government it creates an inequality of citizenship. Aboriginal Australian can and do elect Aboriginal people to represent them in Parliament and their representatives have the capacity to pass legislation that will achieve the same goals of improving outcomes for Aboriginal peoples. As Chris Merritt notes, the argument goes that "Mechanisms (laws) to improve standards should be temporary and terminated when goals ( ie closing the gap) have been achieved”
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THE 'TREATY' ARGUMENT - |
The Uluru Statement from the Heart emphasised three key elements - Voice, Treaty and Truth. Those that advocate for Treaty first see self determination as the core of any future progress. Their perspective is that the Voice is symbolic and will not bring about lasting change. A treaty would establish Aboriginal sovereignty, guarantee land rights and open the possibility of reparations being paid to Aboriginal people for the impact of colonialisation.
Where the voice is advisory only, a treaty delivers a practical bundle of rights that can resurrect Aboriginal pride of place. Being a creature of the federal parliament, the influence of the voice is limited to Canberra Quote from Opinion piece by Michael Mansell, Heather Sculthorpe and Maggie Walter on Voice, Treaty and Truth, published in The Mercury on Saturday, 21 January 2023.
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The 'Fairness' Argument |
The core of the 'Fairness Argument' is that it is inherently unfair to treat some people differently in our constitution than others. According to this argument, in allowing indigenous Australians a platform for making representations that is not afforded to other Australians, the Voice will introduce a (new) unfairness into the constitution. The fact that the Voice will not grant new legal rights or protections to indigenous Australians is irrelevant - a new privilege is being introduced for one class of people. The argument continues that to do so is to divide the nation between those with such a privilege and those without - something that is seen to be unfair and divisive.
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The 'Racist' Argument |
For some opponents of the Voice, the proposal is unacceptable because it introduces a distinction based on race into the constitution. According to this argument, 'race' has no place in the constitution at all, and for that reason the Voice - which arguably introduces a privilege that extends only to members of a certain race - undermines the values of modern Australia.
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The 'Too Risky' Argument |
Finally, for some opponents of the Voice, the proposal is unacceptable because it is too constitutionally risky. According to the argument, because no one can predict with absolute certainty how the constitutional provision will be interpreted by the High Court, it is possible that it may have a more expansive impact than envisaged. There is a risk, the argument goes, that the failure to consult with the Voice, or listen to their representations, may result in the invalidation of legislation or government decisions. Moreover, litigation is likely to slow down decision-making and potentially clog up the courts. At risk, according to this argument, are the very foundational norms upon which our constitution is based.
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Additional resources, links and materials are provided in the Further Resources section below.
Further REsources
A summary of some of the arguments for both the Yes and No case has been produced by the Rule of Law Education Centre:
For resources outlining why people may want to vote No, produced by advocates for the No case, see:
Treaty Before Voice via networks of First Nations Grassroots Communities and the Brisbane Aboriginal Sovereign Embassy argues for self-determination and sovereignty before the establishment of a Voice to Parliament.
See also:
- Rule of Law Education Centre, Voice Referendum: Legal Arguments For and Against the Voice (2023)
For resources outlining why people may want to vote No, produced by advocates for the No case, see:
- Warren Mundine AO, What does the Voice means for Australia
- Senator Jacinta Price’s - Speech to Parliament on why she will be voting No.
- The Hon Ian Callinan AC Submission to the Inquiry into the Aboriginal and Torres Strait Islander Voice Referendum (2023) - This discusses the legal debate.
- Chris Merrit, First Nation’s Voice to Parliament: The Argument for Voting NO (2023)
Treaty Before Voice via networks of First Nations Grassroots Communities and the Brisbane Aboriginal Sovereign Embassy argues for self-determination and sovereignty before the establishment of a Voice to Parliament.
- Treaty Before Voice Website
See also:
- Northern Territory Treaty Commission Final Report (2022) - June 2022
- The Tasmanian Aboriginal Centre is campaigning for a Treaty before any Voice - see their Campaign here